Texas v. Perry Emerges From Years of Struggle Over Anticorruption Unit

Gov. Rick Perry of Texas, speaking in New Hampshire, is under indictment for trying to oust Rosemary Lehmberg, a district attorney, pictured on a shirt. The case has deep roots.

Brian Snyder / Reuters

By DAVID MONTGOMERY

August 26, 2014

AUSTIN, Tex. — The trail to Rick Perry’s indictment began with way too many drinks and a drunken-driving arrest for Rosemary Lehmberg, the Travis County district attorney, that was captured in embarrassing detail on videotape.

But the conflict between Republicans who control state government and the Democratic district attorney’s office has been playing out for years, forming a complicated back story to the unfolding legal drama known as the State of Texas v. James Richard “Rick” Perry.

Mr. Perry’s powerhouse defense team filed a motion on Monday to dismiss the felony indictment, asserting that the 64-year-old governor and prospective 2016 presidential candidate was constitutionally empowered to seek Ms. Lehmberg’s resignation. Mr. Perry contends Ms. Lehmberg was unfit to remain in office after berating deputies and kicking a cell door after a drunken-driving arrest in April 2013. She served about half of a 45-day jail sentence.

Mr. Perry and his lawyers have had substantial success in the court of public opinion, contending that the charges represent an overreach that has more to do with politics than the law. But Mr. Perry’s critics note that the grand jury indictment was secured by a special prosecutor who was appointed by a Republican judge and has no clear political leanings or ties to the Travis County courthouse.

And some in Texas say the most important political context was the animus Mr. Perry harbored toward the district attorney’s office that, the prosecution alleges, led him to jump on a drunken-driving arrest to improperly attempt to force Ms. Lehmberg from office. The special prosecutor, Michael McCrum, a former assistant United States attorney during the George Bush administration, told reporters last week that he had a sound case against Mr. Perry.

At the center of Texas v. Perry is the district attorney’s Public Integrity Unit, which was formed in the 1980s to prosecute official corruption here in the capital, as well as insurance fraud and financial crimes. The office has prosecuted more Democrats than Republicans, stemming from an earlier era of Democratic dominance in Texas. But the unit has been in the Republicans’ cross hairs for years after prosecuting Senator Kay Bailey Hutchison and Representative Tom DeLay, the majority leader, both Republicans.

Transferring the unit’s funding and functions out of the Travis County district attorney’s office to another entity, such as the state attorney general’s office, has been a recurring plank in the state Republican platform. Republicans have also sought that objective through bills filed in the Legislature.

“The Public Integrity Unit through the years has been used as political payback,” said Dick DeGuerin, a lawyer in Houston who represented both Mr. DeLay and Ms. Hutchison in the cases, which were brought by Ronnie Earle, the former Travis County district attorney.

The DeLay case continued under Ms. Lehmberg. She won the office’s first prosecution of a high-profile Republican in 2011 when Mr. DeLay was convicted and sentenced to three years in prison on money laundering and conspiracy charges. The conviction was later overturned, but the case was appealed to the state’s highest criminal appeals court.

In 1993, Mr. Earle prosecuted Ms. Hutchison, who won a special election for the Senate that year, on allegations of misconduct as state treasurer. The case fell apart at the outset of trial, and the judge ordered the jury to acquit Ms. Hutchison. Both Ms. Hutchison and Mr. DeLay claimed they were victims of a politically motivated district attorney.

After Ms. Lehmberg’s arrest, according to the indictment, Mr. Perry threatened to veto state funding for the Public Integrity Unit unless she resigned. He ultimately followed through on the threat, vetoing $7.5 million in state funds. In his veto message, Mr. Perry cited the “otherwise good work” of the unit’s employees but said he could not support continued funding when the public had lost confidence in its boss.

Some speculated that Mr. Perry may have entertained other motives, including the opportunities to hinder a troublesome agency and, if Ms. Lehmberg resigned, to appoint a Republican to an office traditionally occupied by Democrats. “He had a twofer,” said Harvey Kronberg, publisher of The Quorum Report, an online political newsletter. “He had the possibility of neutering it by putting a crony in. Or, if she didn’t resign, the alternative was defund it and make it go away.”

But Mr. DeGuerin, who describes himself as a “Lyndon Johnson Democrat” and is not involved in the governor’s defense, disputes the theory that Mr. Perry would have named a Republican, citing news media reports that Mr. Perry’s office, in behind-the-scenes negotiations, expressed a willingness to name Ms. Lehmberg’s assistant to the post.

Mr. Perry’s lawyers attacked the claim as a misdirection, releasing an affidavit from the unit’s former top investigator in the case who said that Mr. Perry and his staff were never implicated in the case.

Gregg Cox, a 23-year veteran of the district attorney’s office who leads the Public Integrity Unit, says he constantly battles legislative misconceptions about the unit’s work, pointing out that high-profile cases against public officials form only a small part of its portfolio. Of the 425 cases under investigation when Mr. Perry announced his veto on June 14, 2013, he said, only 23 were against public officials or state employees.

“It’s the public corruption cases that grab the headlines, but that’s a very small portion of the work we do over here,” he said. The unit has prosecuted 15 Democrats and six Republicans over the past three decades, with varying results. The list of prosecutions includes Mr. Earle, who paid a $200 fine in 1983 after charging himself with a misdemeanor offense for failing to file a campaign report on time.

Mr. Cox acknowledges that the unit is a target of political criticism. “Yes, absolutely,” he says. “Sometimes people will shake our hands and be very nice to us and say ‘I appreciate the work you do,’ but as soon as they walk in front of a TV camera, they say it a little bit differently. And I understand. These are elected officials, they have to please the base, and that goes for both sides. We have Democrats that criticize us for not being hard enough.”

The uproar over Mr. Perry’s indictment is expected to intensify debate on the unit’s future when the Republican-controlled Legislature reconvenes in January. Jane Nelson, chairwoman of the State Senate Finance Committee, a Republican, said that efforts will be made to move the unit to someplace “less partisan.”

The complaint that led to the indictment against Mr. Perry came from Texans for Public Justice, a liberal-leaning but nonpartisan watchdog group that also lodged the 2003 complaint that resulted in the unit’s investigation of Mr. DeLay.

Craig McDonald, the director, calls Mr. Perry’s portrayal of the indictment as a partisan witch hunt “a big lie” that obscures the fact that the Travis County district attorney’s office was not involved in the investigation. After Ms. Lehmberg and Judge Julie Kocurek, a Democrat, recused themselves, said Mr. McDonald, the case was assigned to Judge Bert Richardson, a Republican, who appointed Mr. McCrum as a special prosecutor.

Mr. Perry’s critics have also pointed out that he took no action against two district attorneys elsewhere in Texas, one a repeat offender, after they were arrested on drunken-driving charges.

“Rick Perry has an inconvenient history with Republicans charged with drunk driving,” said Phillip Martin, deputy director of Progress Texas, a Democratic group. “He only took action against the district attorney empowered with investigating corruption in his office.”

Lucy Nashed, a spokeswoman for Mr. Perry, said those two cases were not comparable to this one.

“Neither of those individuals oversaw the Public Integrity Unit, which receives state taxpayer dollars,” she said, “and we have no evidence that either of them behaved as inappropriately or abusively to law enforcement when they were arrested.”